PLJ 2022 CrC 1267
The language of amended section 324 PPC is explicit in sense and leaves no room for discussion that an act of accused towards taking the life of his adversary is made punishable with imprisonment upto 10 years. If such act of the accused culminates in infliction of injury to the victim, he also becomes liable to the punishment provided for the nature of hurt received by the victim.
The intention of an accused manifests the moment he presses the trigger of his weapon while pointing it towards a living human being, more importantly in case of successive fire shots. The grant of bail on the laboured pretext that the victim of murderous assault was in receipt of injuries on his non-vital organ amounts to artificially stretching the law in favour of an offender who encroached upon the rights of another for taking his life.(Naeem Ali adv) It is true that in cases of a single shot, the benefit of bail to an accused can be extended on the ground that he opted not to repeat the act of firing, presuming that his ultimate intention was only to inflict an injury and his act was not aimed at taking the life of victim. Likewise, in a case wherein a victim is assaulted through a club, hatchet or knife, generally the injury is inflicted at the intended locale and if it is on the non-vital organ or not serious in nature, it can be pleaded a circumstance in favour of granting bail. Last but not the least, femoral vein/artery and popliteal vein/artery are located in the thigh and calf which if damaged can lead to the death of a person within five to seven minutes.
PLJ 2022 Cr.C. 1267
[Lahore High Court, Lahore]
Present: Ch. Abdul Aziz, J.
MUHAMMAD AZAM--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 23859-B of 2022, decided on 17.5.2022.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, 1860 (XLV of 1860), Ss. 324/109/34-- Post arrest bail, dismissal of--Attempt to murder--Three successive shots--Petitioner fired three successive shots and the bullets hit on the right calf and thigh--After the receipt of firearm injuries, injured fell on the ground and petitioner inflicted two more pistol shot injuries on the left calf and thigh--Section 324 PPC was inserted to cater to need of dealing with the offence of attempt to commit murder-Act of the accused committed with intention and knowledge--The intention of an accused manifests the moment he presses the trigger of his weapon while pointing it towards living human being--More importantly in case of successive fire shots--Formal vein/artery and popliteal vein/artery are located in the thigh and calf which if damaged can lead to the death of a person within five to seven minutes-- During investigation, petitioner was found fully involved--Petition is dismissed.
[Pp. 1268, 1270, 1271, 1272 & 1273] A, B, C, D, E, F, G
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 324--Attempt to commit Qatl-i-Amd--Section 324 PPC was inserted to cater to need of dealing with the offence of attempt to commit murder. [P. 1270] B
PLD 1989 SC 633 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 324--Attempt to commit Qatl-i-Amd--Act of the accused committed with intention and knowledge to commit qatl-i-amd was made punishable--Attempt of Qatl-i-Amd is equated to actual Qatl-i-Amd which has been defined in Section 300, PPC--For attempt at qatl which has been equated to Qatl-i-Amd is opening part of section 324 PPC. If hurt is caused, the offender is to be triable for punishment provided for the hurt caused. [Pp. 1270 & 1271] C & D
PLD 1994 Lahore 344 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 324--Attempt to commit Qatl-i-Amd--The intention of an accused manifests the moment he presses the trigger of his weapon while pointing it towards living human being. [P. 1272] E
Sardar Khurram Latif Khan Khosa, Advocate for Petitioner.
Ms. Noshe Malik, Deputy Prosecutor General for State.
Mr. Muhammad Ijaz Khan, Advocate for Complainant.
Date of hearing: 17.5.2022.
Order
Muhammad Azam (petitioner) seeks bail after arrest in case FIR No. 187/21 dated 10.08.2021 under Sections 324, 109, 34, PPC registered at Police Station Jhawrian, District Sargodha.
2. The facts of prosecution case, as can be culled from the First Information Report, are to the effect that on 10.08.2021 at about 6:30 p.m. Muhammad Hayat was on way to his Dera from the house while boarding Motorcycle No. AAU-2843 whereas Muhammad Shahzad (complainant) along with Ghulam Mustafa was following him at a short distance on another motorcycle; that Muhammad Azam (petitioner) intercepted Muhammad Hayat by having a .30 bore pistol in his hand; that thereafter, Muhammad Azam fired three successive shots and the bullets hit on the right calf and thigh of Muhammad Hayat; that after the receipt of firearm injuries Muhammad Hayat fell on the ground and Muhammad Azam inflicted two more pistol shot injuries on the left calf and thigh of Muhammad Hayat; that after the commission of crime Muhammad Azam decamped from the spot on his motorcycle.
3. It is contended by learned counsel for the petitioner that the crime report suffers from unexplained delay of about three hours; that the petitioner has nothing to do with the crime in question and his implication in the case is based on concocted story of crime; that even otherwise, the petitioner inflicted injuries on the non-vital organ of the victim and this fact alone excludes the applicability of Section 324, PPC; that even according to medical reports the injuries are in the nature of 337-F(vi), PPC which entails maximum punishment upto seven years thus does not attract the prohibitory clause of Section 497, Cr.P.C.; and that nothing as such was recovered from the petitioner during investigation. With these submissions learned counsel urged that the petitioner is entitled to the post arrest bail.
4. On the other hand, learned Law Officer assisted by learned counsel for the complainant vociferously argued that the information of crime was furnished to police with utmost promptitude; that Muhammad Azam is the only person nominated in the FIR and is ascribed the role of inflicting multiple firearm injuries to the victim; that intention of the petitioner to commit Qatl-i-Amd of victim can well be gathered from his act of repeating the firing and causing multiple injuries; that most of the injuries so caused by the petitioner resulted in fracture of bones and that since the petitioner is reasonably connected with the commission of crime thus his post arrest bail petition is to be dismissed.
5. Arguments heard and record perused.
6. It divulges from the review of record that the case has its roots in an incident having taken place on 10.08.2021 during which one Muhammad Hayat fell victim to the murderous assault and received multiple firearm injuries on both of his calves and thighs. The allegation of inflicting the firearm injuries to Muhammad Hayat (injured) was pointed towards a solitary accused who is none other than Muhammad Azam (petitioner).
7. The grant of instant post arrest bail is mainly urged on the grounds that the injuries are on the non-vital organ of the victim giving rise to offence under Section 337-F(vi), PPC not attracting the prohibitory clause of Section 497, Cr.P.C. In order to better appreciate the grounds put forth for the grant of post arrest bail, a pressing need is felt to have a look upon the legislative history of Section 324, PPC, the mischief of which is attracted when an attempt to take the life of a living person is made. Originally, Section 307, PPC was an enabling provision dealing with the offence of attempt to murder and its language for reference sake is being reproduced hereunder:-
“307. Attempt to murder:--Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender, shall be liable either to imprisonment for life or to such punishment as is hereinbefore mentioned.”
The law relating to offences against Human Body underwent a change in pursuance of a direction given by the Hon’ble Shariat Appellate Bench of Supreme Court of Pakistan in the case reported as Federation of Pakistan through Secretary Ministry of Law and another vs. Gull Hassan Khan (PLD 1989 SC 633). In consonance with the observation so given in the above referred case, Chapter XVI of The Pakistan Penal Code, 1860 titled as(Naeem Ali adv) “OF OFFENCES AFFECTING THE HUMAN BODY” was revamped through Criminal Law (Second Amendment) Ordinance, 1990. After amendment, Section 324, PPC was inserted to cater the need of dealing with the offence of attempt to commit murder/qatl-i-amd which for reference sake is being reproduced hereunder:
“Whoever does any act with such intention or knowledge, and under such circumstances, that, if he by that act caused qatl, he would be guilty of qatl-i-amd, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and, if hurt is caused to any person by such act, the offender shall be liable to the punishment provided for the hurt caused:
Provided that, where the punishment for the hurt is qisas which is not executable, the offender shall be liable to arsh and may also be punished with imprisonment of either description for a term which may extend to seven years.”
(emphasis provided)
It is evident from above that the act of the accused committed with intention and knowledge to commit qatl-i-amd was made punishable with imprisonment upto 10 years even if no hurt was caused. On the contrary, if through such act accused was successful in effectively causing injury to the victim then he was liable only to the extent of punishment provided for the hurt. It will not be out of place to mention here that through the CRIMINAL LAW (SECOND AMENDMENT) ORDINANCE, 1990, various kinds of hurts were provided in Chapter XVI of the Pakistan Penal Code, 1860 having punishments ranging between two years to fourteen years imprisonment. So according to the originally inserted Section 324, PPC, the accused could be awarded punishment upto 10 years if his act towards taking the life of a victim would have remained ineffective but he was entitled to lesser punishment if it had caused a hurt. This anomaly was noticed by a Division Bench of this Court in case reported as Shahbaz Ahmad and another v. The State (PLD 1994 Lahore 344) and in consequence thereof Ministry of Justice, Law and Parliamentary Affairs was advised to address it through the following excerpt:
“The result is that the conviction recorded against the appellants is upheld for having caused injuries to Basharat P.W. We have, however, noticed that very fluid language has been used in Section 324, P.P.C. The heading given in the margin is “Attempt to commit Qatl-i-Amd”. The section runs:
“Whoever does any act with such intention or knowledge, and under such circumstances, that, if he by that act caused qatl, he would be guilty of qatl-i-amd, shall be punished with imprisonment of either description for a term which may extend to ten years;--and if hurt is caused to any person by such act, the offender shall be liable to the punishment provided for the hurt caused:”
The attempt at Qatl-i-Amd is equated to actual Qatl-i-Amd which has been defined in Section 300, P.P.C. and for which sentence has been provided in Section 302, P.P.C. How, the legislature in its wisdom has equated the attempt at Qatl-i-Amd with actual Qatl-i-Amd? Is very hard to understand. Not only this but something more. For attempt at Qatl which (Naeem Ali adv)has been equated to Qatl-i-Amd is opening part of Section 324, P.P.C. if hurt is caused, the offender is to be liable for punishment provided for the hurt caused, meaning thereby that if no hurt is caused, the sentence is up to ten years with fine but if some hurt is actually caused covered by Sections 337-A and 337-F, the sentence is to be much less. There seems to be no logic or coherence in the two provisions. We hope that the Ministry of Justice, Law and Parliamentary Affairs, Government of Pakistan, would have a second look as to the provisions of the Code referred to above and streamline the law.”
In accordance with the observation rendered in Shahbaz Ahmad case (supra), Section 324, PPC was amended and at present is in force with following phraseology:
“Whoever does any act with such intention or knowledge, and under such circumstances, that, if he by that act caused qatl, he would be guilty of qatl-i-amd, shall be punished with imprisonment of either description for a term which may extend to ten years,( but shall not be less than five years if the offence has been committed in the same or on the pretext of honour) and shall also be liable to fine, and, if hurt is caused to any person by such act, the offender shall [in addition to the imprisonment and fine as aforesaid] be liable to the punishment provided for the hurt caused:
Provided that, where the punishment for the hurt is qisas which is not executable, the offender shall be liable to arsh and may also be punished with imprisonment of either description for a term which may extend to seven years.”
(emphasis provided)
The language of amended Section 324, PPC is explicit in sense and leaves no room for discussion that an act of accused towards taking the life of his adversary is made punishable with imprisonment upto 10 years. If such act of the accused culminates in infliction of injury to the victim, he also becomes liable to the punishment provided for the nature of hurt received by the victim.
8. In the above backdrop, it is noticed that petitioner fired successive pistol shots upon Muhammad Hayat and caused him as many as four injuries at various locales. I am mindful of the fact that all the traumas inflicted to Muhammad Hayat (injured) are on the lower limbs of his person but it goes without saying that the petitioner’s skills of marksmanship are not under consideration before this Court and instead from the canvassed accusations his intention and knowledge to commit Qatl-i-Amd (Naeem Ali adv)is to be assessed. The intention of an accused manifests the moment he presses the trigger of his weapon while pointing it towards a living human being, more importantly in case of successive fire shots. The grant of bail on the laboured pretext that the victim of murderous assault was in receipt of injuries on his non-vital organ amounts to artificially stretching the law in favour of an offender who encroached upon the rights of another for taking his life. It is true that in cases of a single shot, the benefit of bail to an accused can be extended on the ground that he opted not to repeat the act of firing, presuming that his ultimate intention was only to inflict an injury and his act was not aimed at taking the life of victim. (Naeem Ali adv)Likewise, in a case wherein a victim is assaulted through a club, hatchet or knife, generally the injury is inflicted at the intended locale and if it is on the non-vital organ or not serious in nature, it can be pleaded a circumstance in favour of granting bail. Last but not the least, femoral vein/artery and popliteal vein/artery are located in the thigh and calf which if damaged can lead to the death of a person within five to seven minutes.
9. The offence under Section 324, PPC entails punishment upto 10 years and attracts the stringency of prohibitory clause of Section 497, Cr.P.C. The concession of post arrest bail can be extended to an accused only if the reasonable grounds to connect him with the commission of crime are found lacking from the record. The existence of reasonable grounds is to be ascertained from the material comprising upon nature of accusations set out in the First Information Report, statements of witnesses recorded under Section 161, Cr.P.C., the medical evidence and other material collected during investigation. In this regard it is noticed that the petitioner is the sole person held responsible by the witnesses for inflicting all the firearm injuries to Muhammad Hayat. As per record, the injured was medically examined shortly after the incident and was found by the Doctor to be in receipt of multiple firearm injuries with corresponding fractures upon the locales which were in consonance with the ocular account. During investigation, Muhammad Azam (petitioner) was found fully involved in the commission of crime in question. The material so mentioned reasonably connects the petitioner with the commission of crime, rendering him disentitled to the concession of post arrest bail.
10. For what has been discussed above, the petition in hand merits no acceptance, thus is dismissed.
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